Anthony L. Fargo is an associate professor specializing in media law at the Indiana University School of Journalism in Bloomington. He also is a member of the board of the Indiana Coalition for Open Government.
THE EVOLUTION OF THE NEWSPAPER industry and the increasingly contentious world of sports coverage met on a Wisconsin football field last November.
The fans probably thought they were watching a high school playoff game.
The Appleton Post-Crescent's decision to stream live video from the game spawned a lawsuit over the limits high school sports associations can place on the media in return for game access. It probably won't be the last such lawsuit.
The Wisconsin Interscholastic Athletic Association sued the paper, its parent company, Gannett, and the Wisconsin Newspaper Association. The complaint alleged that the paper's streaming video violated the WIAA's exclusive rights.
The WIAA's complaint said that it sold exclusive rights to live coverage to television stations that make up the “WIAA State Network” and video producers. The money helped pay the WIAA's tournament sponsorship costs.
The WIAA asked the court to declare “that it has ownership rights in any transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction of any game, game action, game information, or any commercial used (sic)” of games that it sponsors.
Would a court grant the WIAA such sweeping rights?
“The clear answer is that what the WIAA is asking for, it doesn't have the right to have,” said Gary Roberts, dean of the Indiana University School of Law, Indianapolis, and a leading sports law expert.
The law is clear that the WIAA doesn't own the game itself. Roberts said that most states don't recognize this type of property right, and federal copyright law would pre-empt state law anyway.
If the intellectual property claim is not viable, that could turn the case into an access dispute. Roberts suggested that carries some peril for the papers.
The WIAA's membership is largely comprised of public schools, which raises the possibility that it is a “state actor,” or quasi-governmental. There is considerable case law in the states finding that such athletic associations are state actors, which means they are restricted from discriminating against students, the public, and the press. In fact, The Associated Press reported that Wisconsin newspapers used the state-actor argument in their counterclaim against the WIAA, contending that it was barred from entering into exclusive coverage agreements.
But the WIAA still controls access to the events it sponsors. Conceivably, the WIAA could bar anyone, including fans, from filming games without the WIAA's permission. The WIAA wouldn't do that, Roberts said, because it would be a “PR disaster” to tell Mom to abandon the camcorder or go home.
But the WIAA could bar anyone admitted to its events from filming or streaming video for commercial purposes. Whether streaming live video on a newspaper Web site would be considered a “commercial use” is debatable.
As this column was nearing completion, the AP reported that the executive directors of the WIAA and the newspaper association were ready to talk about a settlement.
This case follows similar battles in Louisiana and Illinois. John Cherwa of the Orlando (Fla.) Sentinel, chair of the Associated Press Sports Editors' legal affairs committee, said about one-third to one-half of high school sports associations are putting restrictions on media activities. The APSE maintains a database of association media policies available at http://apse.dallasnews.com/2008/dec2008/122408carrigsider.html.
Cherwa noted that the Louisiana and Illinois cases were settled on press-friendly terms. But those cases involved the sale of still photographs. Roberts noted that it was unlikely that the WIAA would grant newspapers the right to stream live video of games. Doug Chickering, the WIAA's executive director, seemed to confirm that when he told the AP that no TV station would want to cover high school games without exclusive live broadcast rights.
As newspapers become multimedia content producers to connect better with readers, disputes like the one in Wisconsin seem inevitable. Newspapers have some leverage. Roberts noted that “athletic events only have commercial value because the media publicize them.” One compromise might be allowing newspapers to show video clips after the games end, not live.
Another solution might be for news organizations to reach cooperative arrangements with athletic associations and other content producers. “I think it's going to end up with us being partners with all these people,” Cherwa said.*